By Paul Norris, Ontario Waterpower Association
Introduced for First Reading February 8, 2018 (Bill C-69), the newly proposed federal Impact Assessment Act represents a significant change to the approach to the consideration positive and negative effects on the “environment”, as broadly defined, at a project, regional, and strategic scale. Positioned as one element of the government’s commitment to “restore lost protections”, the proposed legislative framework reinvents environmental assessment as has been practiced at the federal level.
As outlined in the recent federal budget, “the Government is delivering on its promise to protect the environment, restore public trust in federal environmental assessment and regulatory processes and provide predictability for businesses. The proposed changes include:
• Maintaining one project, one review.
• Revising the project list.
• Undertaking more comprehensive impact assessments.
• Making timely decisions.
• Ensuring transparent, science-based decisions.
• Protecting water, fish and navigation.
While the practical application of the proposed approach at a project level has yet to be determined (i.e., designated project list), a review of the list of “factors to be considered” illustrates the increase in scope of a federal review. As outlined in the Bill, the impact assessment of a designated project must take into account the following factors:
(a) the effects of the designated project, including
(i) the effects of malfunctions or accidents that may occur in connection with the designated project,
(ii) any cumulative effects that are likely to result from the designated project in combination with other physical activities that have been or will be carried out, and
(iii) the result of any interaction between those effects;
(b) mitigation measures that are technically and economically feasible and that would mitigate any adverse effects of the designated project;
(c) the impact that the designated project may have on any Indigenous group and any adverse impact that the designated project may have on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982;
(d) the purpose of and need for the designated project;
(e) alternative means of carrying out the designated project that are technically and economically feasible, including through the use of best available technologies, and the effects of those means;
(f) any alternatives to the designated project;
(g) traditional knowledge of the Indigenous peoples of Canada provided with respect to the designated project;
(h) the extent to which the designated project contributes to sustainability;
(i) the extent to which the effects of the designated project hinder or contribute to the Government of Canada’s ability to meet its environmental obligations and its commitments in respect of climate change;
(j) any change to the designated project that may be caused by the environment;
(k) the requirements of the follow-up program in respect of the designated project;
(l) considerations related to Indigenous cultures raised with respect to the designated project;
(m) community knowledge provided with respect to the designated project;
(n) comments received from the public;
(o) comments received from another jurisdiction;
(p) any relevant regional or strategic assessment;
(q) any assessment of the effects of the designated project that is conducted by or on behalf of an Indigenous governing body and that is provided with respect to the designated project;
(r) any study or plan that is conducted or prepared by a jurisdiction, that is in respect of a region related to the designated project and that has been provided with respect to the project;
(s) the intersection of sex and gender with other identity factors; and
(t) any other matter relevant to the impact assessment that the Agency or — if the impact assessment is referred to a review panel — the Minister requires to be taken into account.
Under CEAA 2012, waterpower projects over 200 MW and/or those creating significant new inundation were subject to a federal EA. These thresholds were consistent with those previously used to require a “comprehensive study” under the pre-2012 federal process – a regime in which any federal authorization (e.g. Fisheries Act) was used to trigger an environmental assessment. At present, the government is developing a criteria-based approach to revising the project list that would focus federal impact assessment on projects that have the most potential for adverse environmental effects in areas of federal jurisdiction. Projects with potential for smaller effects in areas of federal jurisdiction would continue to be subject to other federal regulatory processes and protections found under other legislation (e.g. Fisheries Act, Parks Canada Act). The basic principle guiding the review of the Project List is the potential for adverse effects in an area of federal jurisdiction related to the environment.
Under the proposed Impact Assessment Act, the Government of Canada would consider projects that may have impacts on the following components of the environment that are within the legislative authority of the federal government:
• Fish and fish habitat;
• Species at risk (aquatic species);
• Migratory birds;
• Changes to the environment on federal lands, (e.g., including the lands of Indigenous peoples (e.g., reserve lands);
• Changes to the environment in a province other than the one where the project is taking place;
• Changes to the environment outside of Canada; and
• Environmental effects arising from federally regulated projects such as nuclear, rail, ports, airports, interprovincial pipelines and offshore energy activities.
In the next few months, the Government will conduct a review of potential changes and additions using the approach laid out above and will consider all comments it receives as part of this consultation opportunity. Following this first round of consultation, there will be two other phases of consultation. In the fall of 2018 a proposed project list will be shared for a subsequent round of consultation with stakeholders, Indigenous people, provinces and territories, and the public. Following this input, the proposed project list will be revised in advance of commencing the formal regulatory process in 2019, ultimately leading to the potential official coming into force of the regulation through publication in the Canada Gazette.